Free Motion to Amend/Correct - District Court of Arizona - Arizona

Gary Ivens, DC Bar No. 415004 Federal Trade Commission 600 Pennsylvania Ave., NW Washington, D.C. 20580 (202) 326-2330, fax (202) 326-3395 Attorney for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA, PHOENIX DIVISION _______________________________________ ) FEDERAL TRADE COMMISSION, ) ) Plaintiff, ) Civ. No. CV 04-0074 PHX SRB v. ) ) FIRST AMERICAN PAYMENT ) PROCESSING, INC., et al., ) ) Defendants. ) _______________________________________) PLAINTIFF'S MOTION TO CLARIFY THE STIPULATED PROTECTIVE ORDER I. INTRODUCTION The Federal Trade Commission ("FTC") hereby requests that the Court clarify that the stipulated protective order ("SPO") entered in this case on January 27, 2004, does not prohibit the FTC from disclosing confidential information under the circumstances enumerated in subparagraphs 5(b) and 5(c) of the SPO. The issue has urgency because the United States Attorney's Office for the Western District of Missouri has issued a criminal trial subpoena to the FTC for information that is subject to the SPO. Although the FTC believes the intent of the SPO is to allow the FTC to comply with the subpoena, the defendants disagree. Therefore, the FTC asks the Court to clarify the SPO by

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adopting a common sense and practical interpretation. A proposed Modified SPO is submitted herewith. II. BACKGROUND The FTC brought this action against the defendants in January 2004 alleging, among other things, that the defendants assisted and facilitated various telemarketers who operated in violation of the law. In particular, defendant First American Payment Processing ("FAPP") debited consumer bank accounts to process payments to FAPP's clients. Before engaging in discovery, the parties stipulated to a blanket protective order, the SPO, which protects a wide range of information designated as "confidential" by the parties. On January 27, 2004, the Court issued the protective order. The lawsuit ultimately settled, and on November 24, 2004, the Court issued a final permanent injunction. In March 2005, in connection with its criminal prosecution of numerous individuals who have been indicted for conspiracy to commit wire and telemarketing fraud, the United States Attorney's Office for the Western District of Missouri requested that the FTC provide information received from defendant FAPP regarding certain telemarketers who were FAPP's clients. Counsel for the FTC contacted defense counsel for FAPP to inform them of the request. The FTC pointed out that paragraph 5(b) of the SPO permits the FTC to produce information to certain entities, including Congress, government agencies, and in compliance with a court order. Under the exception enumerated in subparagraph 5(b), government agencies seeking access to information

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from the FTC would be required to follow the procedures set forth in the Code of Federal Regulations at 16 C.F.R. Section 4.11(c). However, the FTC noted that due to an apparent mistake in the enumeration of the paragraphs, this exception was made part of the more general Paragraph 5, which purports to limit the sharing of any information to certain specific individuals named in the SPO's paragraphs 3 and 4. Neither Congress nor other law enforcement agencies are mentioned Paragraphs 3 or 4, so Subparagraphs 5(b) and 5(c) only make sense if they are read as stand-alone paragraphs. Because of the apparent inconsistency, the FTC sought an agreement from FAPP's counsel confirming that the SPO does not bar the FTC from providing information to government agencies if it follows the strictures of Subparagraph 5(b). Defense counsel for FAPP would not enter into such an agreement. Instead, the defendants stated that, while they were willing to consent to allow the FTC to produce certain limited information in response to this government agency request, they would require the FTC to obtain the specific consent of their clients for the production of any other information designated as confidential to any government agency, including the U.S. Attorney's Office. Specifically, FAPP's counsel would require the FTC to produce only information related to named entities that had been payment-processing clients of FAPP. The FTC would not agree to an interpretation of the SPO that rendered paragraphs 5(b) and 5(c) meaningless, and also noted that the defendants' insistence on obtaining the specific consent of their clients to every piece of information produced pursuant to paragraphs 5(b) and 5(c) would impose significant and unreasonable burdens

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on the FTC. This is so because many of FAPP's clients operated under multiple names and had various related entities. For example, if a subpoena sought documents about FAPP client Platinum 2000, a telemarketer of advance-fee credit cards, would the FTC over-produce (and be subject to a contempt action under the current of the SPO) if it turned over files for that entity plus those of Platinum Discount, Telehublink Corp., and Continental Benefits Group ­ all of which were either related entities or d/b/a names of Platinum 2000? In April 2005, the U.S. Attorney's Office issued a trial subpoena to the FTC requesting information relating to FAPP's payment processing activities for various telemarketing companies identified in its indictment. See Ex. 2.1 When the FTC learned that the subpoena would be issued, FTC counsel again contacted defense counsel to attempt to resolve the situation without the need for court intervention. However, the defendants would not agree that the SPO allows the FTC to produce information pursuant to this subpoena without requiring their client's consent. Although the FTC believes the intent of the SPO is quite clear and wishes to comply with the subpoena, we believe the prudent course of action is to move the Court to clarify the SPO so that the information-sharing exceptions enumerated in subparagraphs 5(b) and 5(c) are read as stand-alone paragraphs not subject to the introductory language of paragraph 5. This clarification will not only resolve the instant

The face of the subpoena calls for compliance in September 2005. Counsel for the FTC has been informed, however, that the trial date has been continued until February 2006 and the compliance date has been similarly continued. Case 2:04-cv-00074-SRB Document 44 4 Filed 09/23/2005 Page 4 of 21

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dispute between the parties, but will resolve how such requests for information that defendants designated as confidential are to be treated in the future. III. ARGUMENT This Court retains jurisdiction over the SPO even after a final judgment has been entered. United Nuclear Corp. v. Cransford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (court retains power to modify protective order even if underlying lawsuit has been dismissed). 2 A protective order should be interpreted in a common sense way, In re Dual-Deck Vido Cassette Antitrust Litigation, 10 F.3d 693, 695 (9 th Cir. 1993), and it may be modified "to meet the reasonable needs of other parties in other litigation." Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 475 (9 th Cir. 1992). Here, the FTC's request is far more limited than a modification request ­ the FTC simply asks this Court to clarify that the SPO allows the FTC to share information under the circumstances enumerated in subparagraphs 5(b) and 5(c) because: (1) it is the common sense interpretation of the SPO; (2) it makes practical sense to avoid duplicating discovery efforts, particularly where it is necessary for law enforcement purposes; and (3) the defendants do not have a legitimate expectation that the information would be kept confidential from Congress, a court, or law enforcement agencies.

The cited cases discuss the Court's authority to modify protective orders. Because it has the power to modify its own protective orders, it certainly has the authority to clarify or interpret its own protective orders. Case 2:04-cv-00074-SRB Document 44 5 Filed 09/23/2005 Page 5 of 21

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A.

The Common Sense Reading of the SPO is to Allow the FTC to Share Information Under the Circumstances Enumerated in Subparagraphs 5(b) and 5(c)

"For [a] protective order to comply with common sense, a reasonable reading must connect its prohibitions to its purpose." In re Dual-Deck Vido Cassette Antitrust Litigation, 10 F.3d 693, 695 (9 th Cir. 1993) (reversing order of contempt where there was a literal breach of a stipulated protective order but the order was so overly broad as to be absurd). See also FTC v. Productive Marketing, Inc., 136 F. Supp.2d 1096, 1109-10 (N.D. Cal. 2001) (citing In Re Dual Deck, and stating that an overly restrictive reading of certain terms in the order at issue did not advance the purpose of the order). The common-sense reading of the SPO is to protect the sensitive personal information of consumers and the financial information of businesses while allowing the parties to use this information for limited purposes, such as in the instant litigation and in subsequent law enforcement proceedings. Furthermore, the language of paragraph 5(b) and 5(c) of the SPO itself reflects an intent to carve out exceptions to the disclosure prohibitions if the disclosure is required by Congress or a court, or where disclosure is authorized by statute for certain specified purposes, such as sharing information with government agencies acting to enforce the law. The relevant portions of the SPO are organized as follows. Paragraph 1 identifies what information is "confidential," and includes within its blanket protection a broad range of information, including information that contains personal identifying information of consumers, financial or account information of consumers or businesses, and trade

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secrets of any consumer, business, or financial institution; any information in any contract between the defendants and any third-party; the financial information of any defendant; and the employee files of FAPP employees.3 See Dual-Deck, 10 F.3d at 695 (noting that the protective order at issue was written by lawyers and not the judge, to "throw the biggest possible blanket over every kind of knowledge which might be obtained in the lawsuit"). Paragraphs 3 and 4 identify the persons to whom confidential information may be disclosed, and includes among the list: FTC employees, employees of defense counsel's law firm, the defendants, defendants' employees, litigation experts and consultants, deponents and court reporters, the Court and the Court's personnel, and witnesses. Paragraph 5 performs two functions, and this is where the arguable ambiguity emerges. First, it sets the parameters for the use of confidential information with the individuals identified in paragraphs 3 and 4, specifically stating that such information can be disclosed to further the litigation of this case and "any subsequent enforcement

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Paragraph 1 of the SPO (attached as Ex. 1 for the Court's convenience) states: As used in this Order, "Confidential Information" shall refer to: a. Any document or portion thereof containing: 1) information that identifies or could be used to identify consumers (e.g., name, social security number, postal address, or email address); 2) a consumer's, merchant's, client's financial institution's or third-party ACH processor's personal or business financial or account information, including but not limited to credit reports, loan applications, records of accounts with financial institutions, income sources, income tax statements, payment or debt history, or other information that determines credit-worthiness; and 3) the trade secret information of any consumer, merchant, client, financial institution, or third-party ACH processor.

1.

Subparagraphs 1(b) - (d) identify additional information that would be treated as confidential. Case 2:04-cv-00074-SRB Document 44 7 Filed 09/23/2005 Page 7 of 21

proceeding against any entity." Second, it enumerates the exceptions for the disclosure of confidential information. For example, it states that disclosure is allowed pursuant to applicable statutes and regulations, subpoena from Congress, or orders of court. The ambiguity in Paragraph 5 results from the application of its introductory language to the information sharing exceptions described in Subparagraphs b and c. In its entirety, Paragraph 5 states: 5. Disclosure of Confidential Information to any person described in Paragraphs 3 and 4 of this Order shall be only for the following purposes: a. The preparation, litigation, settlement, and appeal of this proceeding and any subsequent enforcement proceeding against any entity or any proceeding to effectuate final relief such as consumer redress. Subject to taking appropriate steps to preserve confidentiality, the FTC may: (1) disclose and use information that is Confidential under Paragraph 1 of this Order to the extent permitted by the confidentiality provisions of applicable statutes and Commission rules; and (2) disclose and use Confidential Information obtained pursuant to this Order (a) in responding to a formal request or subpoena from either House of Congress or from any committee or subcommittee of the Congress, consistent with applicable law, including Sections 6(f) and 21 of the Federal Trade Commission Act; (b) pursuant to Section 6(f) of the Federal Trade Commission Act; (c) in responding to a federal, state, or local government access request under Commission Rule 4.11(c), 16 C.F.R. § 4.11(c); or (d) pursuant to court order. Any party possessing Confidential Information may disclose and use it to the extent required and/or permitted by any court order.

b.

c.

See SPO (Ex. 1). If read as the defendants suggest, the SPO would be nonsensical. See In Re DualDeck, 10 F.3d at 695 (reversing contempt finding because the order, literally read, was

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absurd). For example, if interpreted as the defendants suggest, the FTC would be prohibited from disclosing confidential information in response to a subpoena issued by Congress because Congress is not among the persons enumerated in paragraphs 3 or 4. The same analysis would apply to court orders, statutory provisions governing the FTC, and requests for information from government agencies acting to enforce the law. Furthermore, the limiting language in subparagraph 5(b) requiring the FTC to take appropriate steps to preserve the confidentiality of information before producing it to Congress or others would be rendered entirely meaningless if the disclosure of such information were limited to the parties to the litigation. Indeed, the defendants' interpretation of the SPO would render all of subparagraphs 5(b) and 5(c) a complete nullity. See On Command Video Corp. v. Lodgenet Entertainment Corp., 976 F. Supp. 917, 921 (N.D. Cal. 1997) (refusing to read the parties' stipulated protective order in a way that would render meaningless the paragraph enumerating the possible use of confidential information). Instead, the Court should clarify the SPO to give the intended meaning to subparagraphs 5(b) and 5(c), which include specific citations to statutes and implementing regulations where the FTC acts pursuant to its statutory authority. Indeed, section 6(f) of the FTC Act specifies with particularity the circumstances under which the FTC may share confidential information with a law enforcement agency. In particular, it states that confidential information may be disclosed to other law enforcement agencies only "upon the prior certification of an officer of any such Federal or State law

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enforcement agency that such information will be maintained in confidence and will be used only for official law enforcement purposes." 15 U.S.C. § 46(f). 4 Therefore, FAPP's recent assertion that this interpretation would grant the FTC "unfettered discretion to disseminate First American's documents," see Ex. 3 (email from Andrea Marconi), is entirely without foundation. Even in the hands of a law enforcement agency, the information would be kept confidential, pursuant to the requirements of the statute. Moreover, defendants' argument is not grounded in common sense, as it would render all of the specifically enumerated exceptions and limitations in subparagraphs 5(b) and 5(c) null and void. Therefore, the common sense interpretation of the SPO is to read subparagraphs 5(b) and 5(c) as not limited by the introductory language of Paragraph 5. B. The Requested Clarification Would Obviate Further Disputes

Furthermore, the clarification that the FTC seeks would avoid repetitive disputes that could arise from discovery efforts in future potential cases. Indeed, with respect to

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Section 6(f) of the FTC Act specifically states:

. . . the Commission shall not have any authority to make public any trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential, except that the Commission may disclose such information to officers and employees of appropriate Federal law enforcement agencies or to any officer or employee of any State law enforcement agency upon the prior certification of an officer of any such Federal or State law enforcement agency that such information will be maintained in confidence and will be used only for official law enforcement purposes. 15 U.S.C. § 46(f). The SPO also specifically refers to the regulation applied to this statutory authority, 16 C.F.R. § 4.11(c). This regulation reiterates that disclosed information must be held in confidence and used for official law enforcement purposes, and further, it requires that the requesting law enforcement agency "describe the nature of the law enforcement activity and the anticipated relevance of the information to that activity." 16 C.F.R. § 4.11(c). Case 2:04-cv-00074-SRB Document 44 10 Filed 09/23/2005 Page 10 of 21

protective orders, "Ninth Circuit precedent strongly favors disclosure to meet the needs of parties in pending litigation." Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 475 (9 th Cir. 1992) (citing Olympic Refining Co. v. Carter, 332 F.2d 260 (1964) and affirming modification of a protective order to allow intervenors with their own pending litigation to have access to discovery). This rationale applies with extra force here because the entity that issued the subpoena for discovery that gave rise to this dispute is a criminal law enforcement agency seeking the prosecution of individuals who defrauded scores of consumers. See In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d 1222, 1226 (9 th Cir. 1995) (adopting a "per se rule that a grand jury subpeona should, as a matter of course, prevail over a protective order.") As noted above, the FTC is in possession of documents that defendant FAPP produced pursuant to discovery requests. Specifically, FAPP produced documents that indicate the amounts FAPP caused to be debited from consumers accounts on behalf of its many clients. Some of those FAPP clients are now the focus of a criminal action in the Western District of M issouri. Instead of forcing the United States Attorney's Office of the Western District of Missouri to attempt to duplicate the discovery that the FTC already obtained, this court should clarify that the protective order permits access to discovered information under the conditions set forth in paragraphs 5(b) and 5(c). Moreover, it is possible that FAPP, which is no longer controlled by the named defendants, no longer retains the documentary evidence that it supplied to the FTC.

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Because FAPP processed payments for many telemarketing entities that operated under various different names and corporate structures, there is a good possibility that other law enforcement agencies will seek information from the FTC as has the United States Attorney for the Western District of Missouri. By intervening in this dispute now and clarifying the SPO, the Court can forego any future piecemeal approach every time the FTC is served with a valid subpoena from a law enforcement agency. C. The Defendants Could Not Reasonably Rely on an Expectation that Confidential Information Would Be W ithheld

The common sense interpretation and the practical result urged by the FTC makes all the more sense because the defendants did not have a reasonable expectation that the large pool of information they designated as confidential would be withheld secret. "The extent to which a party can rely on a protective order should depend on the extent to which the order induced the party to allow discovery." Beckman, 966 F.2d at 475. Where a stipulated blanket protective order has been entered, "reliance will be less" because such an order "is by nature overinclusive." Id. at 476 (noting that there was never a good cause showing for the entry of the protective order because it was stipulated). As in Beckman, the SPO here designated a wide swath of information as "confidential." The defendants' reliance on complete confidentiality is even more diminished in this case because they knew at the time that the FTC initiated its lawsuit that many of FAPP's clients had already been sued by law enforcement agencies, and the defendants agreed to allow confidential information produced in discovery to be used in this case and 12 Filed 09/23/2005

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in "any subsequent enforcement proceeding against any entity." SPO, ¶ 5(a). Finally and significantly, the very inclusion of subparagraphs 5(b) and 5(c) in the SPO indicates an awareness on the part of the defendants that the information they designated as confidential information could be disclosed outside the context of the FTC litigation to other branches of the government. IV. CONCLUSION In sum, it is untenable to suggest that an error in the enumeration of a subparagraph in a protective order can bar an agency of the federal government forever from sharing any information subject to the protective order with any other member of the government. Therefore, the FTC respectfully requests that the Court clarify the SPO so that subparagraphs 5(b) and 5(c) are read as stand-alone paragraphs.

Dated: September 23, 2005

Respectfully submitted,

Gary L. Ivens FEDERAL TRADE COMMISSION 600 Pennsylvania Ave., N.W., Rm. 238 Washington, DC 20580 (202) 326-2330 (202) 326-3395 (facsimile) Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing Plaintiff's Motion to Clarify the Stipulated Protective Order was served in the manner noted on September 23, 2005, upon counsel for the defendants as follows: BY FACSIMILE AND BY FIRST-CLASS MAIL, POSTAGE PREPAID: Cynthia A. Ricketts Brian M. McQuaid Andrea L. Marconi Squire Sanders & Dempsey L.L.P. Two Renaissance Square 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 Fax: (602) 253-8129 Counsel for Defendants

Gary Ivens

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA, PHOENIX DIVISION _______________________________________ ) FEDERAL TRADE COMMISSION, ) ) Plaintiff, ) Civ. No. CV 04-0074 PHX SRB v. ) ) MODIFIED PROTECTIVE ORDER FIRST AMERICAN PAYMENT ) PROCESSING, INC., et al., ) ) Defendants. ) _______________________________________) To ensure that matters raised by this proceeding are open to the public and to protect the confidential information of consumers and producing parties, IT IS HEREBY ORDERED THAT: 1. As used in this Order, "Confidential Information" shall refer to: a. Any document or portion thereof containing: (1) information that

identifies or could be used to identify consumers (e.g., name, social security number, postal address, or email address); (2) a consumer's merchant's, client's, financial institution's, or third-party ACH processor's personal or business financial or account information, including but not limited to, credit reports, loan applications, records of accounts with financial institutions, income sources, income tax statements, payment or debt history, or other information that determines credit-worthiness; and (3) the trade secret information of any consumer, merchant, client, financial institution, or third-party ACH processor.

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b.

Any information contained in any contract between First American

Payment Processing, Inc. ("FAPP"), CET Corp. ("CET"), Check Processing Center, LLC ("Check Processing Center") and any third-party, including but not limited to, financial information, account information and trade secrets. c. The financial information of Matthew Robinson or Jennifer

Robinson, Carl Towner or Jennifer Towner, CET, Check Processing Center, or FAPP produced, if any, as part of this litigation. d. Employment files for FAPP employees (other than names and

contact infromation of employees). 2. This Protective Order applies to Confidential Information produced during

the course of this litigation by a party to the litigation. 3. Confidential Information shall be disclosed only to: a. FTC; b. c. Counsel of record for defendants and employees of their law firm(s); Defendants FAPP, CET, Check Processing Center, Matthew FTC counsel, FTC Commissioners, employees and contractors of the

Robinson and Jennifer Robinson and Carl Towner and Jennifer Towner; d Defendants' employees, upon obtaining an executed copy of the

acknowledgment of the receipt of a copy of this Order. A form of acknowledgment is attached hereto as Exhibit A. However, this Order shall not limit or impair defendants' employees from accessing defendants' files and records as otherwise permitted in the

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course and scope of their employment. Confidential Information that defendants' employees would not otherwise have access to may be disclosed to defendants' employees only for the purposes of theis or other litigation between the parties and for no other purpose, and shall not be used in the defendants' business affairs, be imparted to any other person, or used by any employee for his own affairs; e. Consultants and experts retained for the purpose of assisting in the

preparation of this or other litigation between the parties, upon obtaining an executed copy of the acknowledgment attached hereto as Exhibit A. Confidential Information shall not be used by the consultants or experts in any business or consulting affairs other than this litigation; f. Deponents, their counsel, Court reporters and any persons preparing

transcripts of depositions in connection with depositions taken in this litigation; and g. 4. The Court and Court personnel.

Notwithstanding Paragraph 3, a party may: (1) provide Confidential

Information about a particular witness to that witness, and (2) disclose and use Confidential Information during any other witness interview, deposition, or preparation session for any deposition or court appearance in the course of this action. A party may not provide copies of Confidential Information for a witness to keep, except in accordance with subsection 1 of this Paragraph. A party may also use Confidential Information to furmulate and pose discovery requests, including but not limited, depositions, interrogatories, document requests and requests for admissions.

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5.

Disclosure of Confidential Information to any person described in

Paragraphs 3 and 4 of this Order shall be only for the following purposes: the preparation, litigation, settlement, and appeal of this proceeding and any subsequent enforcement proceeding against any entity or any proceeding to effectuate final relief such as consumer redress. 6. Subject to taking appropriate steps to preserve confidentiality, the FTC

may: (1) disclose and use information that is Confidential under Paragraph 1 of this Order to the extent permitted by the confidentiality provisions of applicable statutes and Commission rules; and (2) disclose and use Confidential Information obtained pursuant to this Order (a) in responding to a formal request or subpoena from either House of Congress of from any committee or subcommittee of the Congress, consistent with applicable law, including Sections 6(f) and 21 of the Federal Trade Commission Act; (b) pursuant to Section 6(f) of the Federal Trade Commission Act; (c) in responding to a federal, state, or local government access request under Commission Rule 4.11(c), 16 C.F.R. § 4.11(c); or (d) pursuant to court order. 7. Any party possessing Confidential Information may disclose and use it to

the extent required and/or permitted by any court order. If the disclosure would be public, the party subject to such a court order shall notify the original source of the Confidential Information promptly, with sufficient time to allow the source to present objections to the court, and prior to the production of the Confidential Information.

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8.

In the event that any Confidential Information is contained in any pleading,

motion, exhibit or other paper (collectively the "papers") filed or to be filed with the Clerk of the Court, the Clerk shall be so informed by the party filing such papers, and such papers shall be filed under seal and explicitly designate the Confidential Information. Confidential Information contained in the papers shall remain under seal until further order of this Court; provided, however, that such papers may be furnished to persons or entities who may receive Confidential Information pursuant to Paragraph 3. Upon or after filing any paper containing Confidential Information, the filing party may file on the public record a duplicate copy of the paper that does not reveal Confidential Information. At the conclusion of the litigation, the protected nature of all Confidential Information will be determined pursuant ro the provisions of Rule 26(c). 9. All information subject to Paragraph 1(a) or 1(b) of this Order about a

particular witness will no longer be deemed Confidential Information if the witness testifies at trial. 10. For information subject to Paragraph 1 of this Order, the producing party,

deponent or any party for the purpose of protecting Confidential Information including, but not limited to, his or her counsel or the FTC, on the record of the deposition or by written notice to counsel for all parties no later than thirty (30) days after the deposition transcript is first made available to the deponent, designate portions thereof as Confidential Information under the terms of this Order. Until the submission of such designations, the deposition transcript and the information contained therein will be

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deemed to be Confidential Information in its entirety. At the end of the thirty-day period, only those portions of a transcript of a deposition marked Confidential, if any, shall be deemed Confidential Information. 11. Any party may challenge any Confidential designation by giving written

notice to the designating party (which notice shall specify with particularity the document or other matter pursuant to which the challenge is made). Within ten (10) days of receipt of such notice, counsel for the party that designated the materials must determine whether to withdraw the designation. If the designation is withdrawn, counsel for the designating party shall give written notice of the change. If counsel for the designating party does not withdraw the designation, the party making the challenge may file a motion with the Court with respect thereto. The parties agree that before seeking any relief from the court they will make a good faith effort to resolve any disputes concerning the appropriate treatment of materials. Until this Court enters an order changing the designation, all materials shall be treated in accordance with their initial designation. 12. At the conclusion of all litigation between the parties, all experts,

consultants or other persons retained to assist counsel in the preparation of this action shall return to counsel all copies of documents or portions thereof containing Confidential Information that are in the possession of such person, together with all notes, memoranda or other papers containing Confidential Information. 13. At the conclusion of all litigation between the parties, the parties shall

return or destroy documents obtained in this action to the producing party including all

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appeals, provided, however, that the FTC's obligation to return documents shall be governed by the provisions of Rule 4.12 of the FTC's Rules of Practice, 16 C.F.R. § 4.12. 14. Nothing in this Order shall be construed to affect or limit in any way the use

or admissibility of any document, testimony, or other evidence at trial or any evidentiary hearing. 15. Nothing in this Order shall be construed to effect an abrogation, waiver, or

limitation of any kind on the right of the parties or a third party to assert any applicable discovery or trial privilege. SO ORDERED this ________day of _________________________, 2005.

__________________________________ Susan R. Bolton, U.S. District Judge

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